TaxTMI 
TaxTMI 
TaxTMI 
1963 (1) TMI 63
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....en rise to L. P. A. 177 of 1961, are that the consolidation operations started in village Atohan in Tehsil Palwal of Gurgaon district in 1954-55. The petitioners are the proprietors and landowners in the village. The scheme of consolidation as envisaged under Section 24 of the Act came into force in June, 1957 and the landowners were put into possession of their new plots which had been assigned to them by the Consolidation authorities, after the estate had been repartitioned in accordance with the consolidation scheme. The Consolidation operations had concluded in 1957. In 1958, the Settlement Officer disposed of all the appeals which had been preferred by the allottees of the new plots. From the order of the Settlement Officer, one person had preferred an appeal to the Assistant Director which was disposed of in 1958-59. Some applications had been filed to the Director of Consolidation of Holdings (respondent) under Section 42 of the Act for the modification OF revocation of the consolidation scheme. It is said that the predecessor of the present Director personally went to the village and disposed of the said applications making necessary changes in the scheme. The consolidatio....
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....ere deposited in the Tehsil and the village again came under the revenue authorities and was released from the charge of the consolidation authorities. The petitioners alleged that they had considerably improved the respective plots which had been allotted to them and some of them had sunk pucca wells on their lands and built houses. Some of the plots had been sold for valuable consideration to third parties and some of the petitioners had planted gardens after putting in considerable labour and expense. On account of the improvements so affected, the value of land had greatly increased since repartition. On 23rd February, 1960, the Director of Consolidation of Holdings, Punjab, Jullundur (respondent No. 2), without notice to the petitioners and at their back wrote a memo to the Settlement Officer suggesting the taking of action under Section36 of the Act and desired that the order of the Settlement Officer dated 4th May, 1956, may be suitably amended. On 3rd June, 1960, an ex parte order was passed by the Settlement Officer (respondent No. 3) amending the scheme which had already been confirmed on 4th May, 1956. In pursuance of the order of the Settlement Officer, dated 3rd June,....
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.... scheme. The order of variation of the scheme was published and objections received against the varied scheme were also disposed of by the Settlement Officer and that varied scheme was confirmed on 25th August, 1960 and then repartition proceedings were again published on 24th September, 1960. 9. All these four petitions were heard by Grover, J., and were dismissed, but the parties were left to bear their own costs. 10. Before considering the arguments which have been addressed to us, a brief resume of the salient features of this Act may be given in order to appreciate the policy and plan of the Act. 11. The Act came into force on 14th December, 1948, and so far it has been amended fourteen times. The Act was passed to "provide for the compulsory consolidation of agricultural holdings and for preventing the fragmentation of agricultural holdings in the State of Punjab (and for the assignment of reservation of land for common purposes of the village)": The words in brackets were added to the preamble by Punjab Act 27 of 1960, which further provided that they would be "deemed always to have been so added". Thus, the main purpose of the Act is consolidation of....
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....ion. The Consolidation Officer, alter giving a hearing to the objector, may pass appropriate orders confirming or modifying the repartition. Sub-section (3) allows a person dissatisfied with the order of the Consolidation Officer to file an appeal before the Settlement Officer who, after giving a hearing to the appellant, may pass such orders as he considers appropriate. Under Sub-section (4), right of appeal is given from the order of the Settlement Officer to the State Government. Under Section 22 the Consolidation Officer shall cause to be prepared a new record of rights for the area under consolidation giving effect to the repartition as finally sanctioned as provided in Section 21. Section 23 (1) determines the right to possession of new holdings where all persons concerned agree to enter into possession of the holding allotted to them by the scheme as finally confirmed. The Consolidation Officer may allow them to enter into such possession forthwith or from such date as he may specify. Sub-section (2) provides for a contingency where there is no agreement as to entry into possession. In such a case, the owners or tenants are entitled to possession of the holdings and tenanc....
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...."36. A Scheme for the consolidation of holdings confirmed under this Act may, at any time, be varied or revoked by the authority which confirms it subject to any order of the State Government that may be made in relation thereto and a subsequent scheme may be prepared, published and confirmed in accordance with the provisions of this Act." 13. Chapter IV deals with other powers of Consolidation Officer which are of ancillary nature, and Chapter V commences with Section 41 and is styled 'General'. Section 42 confers additional power on the State Government and it reads -- "42. The State Government may at any time for the purpose of satisfying itself as to the legality or propriety of any order passed, scheme prepared or confirmed or repartition made by any officer under this Act, call for and examine the record of any case pending before or disposed of by such officer and may pass such order in reference thereto as it thinks fit : Provided that no order, scheme or repartition shall be varied or reversed without giving the parties interested notice to appear and opportunity to be heard except in cases where the State Government is satisfied that the procee....
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....es that when an Act casts a duty on the person on whom the power is conferred to exercise that power, then the word is used in the imperative sense. In this sense, it seems that when the authority which confirms a scheme, revokes it and decides upon a subsequent scheme, it is incumbent upon it to have the scheme "prepared, published and confirmed in accordance with the provisions of this Act". It does not mean that the authority is at liberty to do so in one case and forbear in the other. In this case, it becomes the duty of the Settlement Officer to prepare, publish and confirm a subsequent scheme as required by the Act. In this sense, the Legislature cannot be intended to have granted a mere discretion, but rather to have imposed a positive and absolute duty. In this context the word "may" does not signify mere faculty or power, but an obligation. As observed by Lord Blackburn in Julius v. Lord Bishop of Oxford, (1880) 5 A. C. 214, "The enabling words are construed as compulsory whenever the object of the power is to effectuate a legal right." Coleridge, J., in Queen v. Tithe Commissioners, (1849) 14 QB 459 at p. 474 said,-- "The words undoub....
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....or revocation of schemes, third persons are interested and the facultative power conferred upon the officer must be exercised in accordance with the procedure indicated with no liberty to deviate. 17. The next expression used in Section 36, which calls for scrutiny, is "at any time". According to the learned counsel for the appellants, these words relate to the pendency of the consolidation proceedings. The terminus a quo is the preparation of the draft scheme after the Government has declared its intention for consolidating the holdings under Section 14, and the terminus ad quern is the delivery of possession on the preparation of record of rights under Sections 22 and 23. According to the learned counsel for the State, the words "at any time" admit of no limitation and the phrase is to be construed to mean "at all times", and even "from time to time". Learned counsel for the appellants maintained that if the interpretation placed upon these word's by the respondents is to be accepted, then Section36 deserves to be struck down as ultra vires the Constitution, as it contravenes the fundamental rights under Articles 14 and 19 (1) (f), and....
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....f the process and procedure provided by the Act. Consolidation of holdings cannot be intended to be a continuous process without an end and without any finality, or even, continual in the sense of periodic intermittency. Rights of ownership and possession will become extremely precarious if the intention was to keep them in a state of flux liable to be disturbed at the subjective will, whim, or caprice of a particular authority. The result will, therefore, be that there will be no guarantee of tenure even in the case of an absolute owner to exercise the well-known and varied rights of ownership over his property, and there can be no impetus to make any improvements. In most cases. the process of consolidation may result in introducing an element of uncertainty which would make the enjoyment of a particular property extremely precarious resulting in unintended insecurity. It could not conceivably be the object of the Act to confer power on any authority which may be exercised to the detriment of the object of the Act and result in uncertainty to the fightholders whose possession could thus be frequently shifted to the detriment of most. The power under Section 36 cannot be unrestri....
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....the scheme? After the scheme is finalished and confirmed, it comes into force and the result of its enforcement is that a new record of rights in accordance with the Punjab Land Revenue Act, 1887, Chapter IV, has to be prepared for the area which has come under consolidation giving effect to the repartition consequent upon the scheme. Possession has also to be delivered in accordance with the scheme of consolidation. Under Sub-section (1) of Section 23, if all the persons concerned, owners and tenants, affected by the scheme agree to enter into possession of the holdings allotted to them, the Consolidation Officer may allow them to enter into such possession forthwith or from a specified date. Sub-section (a) contemplates the situation where the rightholders do not agree 'to enter into possession, and in that event they shall be entitled to possession of the holdings and tenancies allotted to them from the commencement of the agricultural year next following the date of the publication of the scheme under Section 20 (4) or, as the case may be, of the preparation of the new record of rights under Section 22 (I). The question that calls for examination is what, if any, powers ar....
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....dgment of a Division Bench in Jiwan Singh v. Consolidation Officer, 1962 (64) Pun I,R 668, several provisions of East Punjab Act 50 of 1948 were subjected to detailed scrutiny with a view to construe its meaning. Mahajan, J., felt that certain provisions, in particular Sections 20, 21 and 24, were not happily worded and were conflicting. From the drift of the Act and the intention of the Legislature, though without any attempt to reconcile the provisions, it was concluded that Section 22, which referred to preparation of records of rights, contemplated repartition after all the objections, appeals and further appeals have been finally disposed of and there can be no transfer of possession in pursuance of a "finally confirmed" scheme within Section 23 (1) till the objections etc., are decided, as possession in case of parties not in agreement can only be transferred after the preparation of new record of rights. Mahajan, J., remarked - "If, on the other hand, possession in case of repartition can only be transferred after the preparation of the record of rights and the record of rights can only be prepared after, objections, etc., to the repartition as provided in S....
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....ng the scheme a residue of power to amend or end the scheme after any length of time and even recurrently. The Legislature could not have intended to confer upon the Settlement Officer power of exercising a substantive discretion whereby rights and title to property could be left in constant state of precariousness with resultant insecurity and instability. On this assumption the very purpose of the Act will be defeated and the result would be not consolidation, which is the manifest intention of the statute, but indetermination and fluctuation. A statutory provision must be construed to effectuate the declared intention of the Act rather than to hinder it from its known purpose and such a drastic provision ought, therefore, to be construed narrowly and strictly. 23. Again, the language of Section 36 needs to be compared to that of Section 42, the scope of which is wider. Under Section 36, the power conferred upon the authority which confirms a scheme refers to varying or revoking a scheme of consolidation confirmed under the Act; This power is not exercisable prior to confirmation of a scheme and avails in respect of a scheme. Section 42 which is broad-based enables the Governmen....
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....efore, cannot be extended to a period after the Settlement Officer has ceased to function. 25. The next question is whether Section 36 transgresses any constitutional inhibition if the phrase "at any time" is to be given unrestricted meaning and is to be construed to mean "at all times" without any terminus ad quem or culminating point. Despite the terminal point having reached and the proceedings of consolidation, having ended, can the Settlement Officer still exercise his authority and then even after the passage of several years, or, theoretically, even after decades, without violating the appellant's fundamental rights. Under this head, reference will also be made to other lacunae in the provisions of Section 36 which make it vulnerable on ground of its being violative of principles of natural justice. It is said that this section gives unfettered discretion to the Settlement Officer to vary or revoke a scheme not only at all times and from time to time, but also arbitrarily, his discretion being unfettered and uncanalised. It is said that Section 36 vests un-guided discretion in the authority uncontrolled by any safeguards. The powers are completely un....
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....ulled into a sense of false security, had put in a large outlay. This happens despite the fact that the scheme which has now been revoked under Section 36 has passed through a number of screening processes and has remained inviolate up to appellate or revisional stage. It is also to be remembered that considerable areas also vest in the Gram Panchayat for several beneficent purposes and the vested rights of the Panchayat are equally liable to be interfered with, curtailed, or taken away in respect of particular units or parcels; It was said that a further element of uncertainty is introduced when the process of variation and revocation can be repeated ad libitum. 28. The stand taken by the Punjab State that the power conferred under Section 36 admits of 10 limitation in matter of time and is exercisable repeatedly, as often as the authority may like to interfere, has been, resisted on the ground that Section 36 is a sweeping measure which extinguishes title, disturbs possession, unsettling everything abruptly without notice or opportunity, and without assigning any reason; and therefore this provision was said to be drastic and undefined. 29. Mr. Lachhman Dass Kaushal for the res....
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....me as already framed. This right of theirs' is not suitably protected by refusing them the right of hearing at the stage of variation or revocation, and by next telling them that when the subsequent scheme is prepared they may then utilise the opportunity for raising objections, etc., as provided under the Act. What the rightholders are being, denied is the right to apprise the Settlement Officer that the scheme as already confirmed is to their benefit and its reversal would be to their detriment. By being deprived of this opportunity the audi alteram partem rule is thus infringed. 31. The arguments referred to above raise two-matters which must be examined and disposed of independently of each other. The first question is whether Section 36 is to be struck down on the ground that it is violative of fundamental rights-mentioned in Articles 14 and 19 (1) (f) of the Constitution. The second matter which calls for consideration is whether independently of the rights conferred by the abovementioned Articles, Section 36 is bad because it infringes the rule of natural justice which is a pervading principle of universal equity - " Le principe que nul ne doit etre condamne ou p....
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.... 20 of 1953 which amended Section 36 in the form in which it is at present did not receive the assent of the President. The original Act, 50 of 1948, had received the assent of the Governor-General of India on 7th December, 1948, and Section 36 then stood without the words "the authority which confirms it subject to any order of the State Government that may be made in relation thereto and". By the amending Act 20 of 1953 these words were inserted and now Section 36, as amended, reads -- "36. A scheme for the consolidation of holdings confirmed under this Act may, at any time, be varied or revoked by (the authority which confirms it subject to any order of the State Government that may be made in relation thereto and) a subsequent scheme may be prepared, published and confirmed in accordance with the provisions of this Act." The amending Act was not reserved for the consideration of the President and consequently did not receive his assent. It received the assent of the Governor of Punjab on 28th April, 1953. After Punjab Act 20 of 1953, the parent Act was amended on ten occasions, though no changes were brought about in Section 36. Out of the subsequent ame....
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.... the law as it was prior to the amendment. On the basis of this argument it is contended that as the only amending Act which amended Section 36. namely, Punjab Act 20 of 1953, had received the assent of the Governor and not of the President, its provisions remain unaffected by what is contained in Article 31A(1)(a). It has to be remembered that proviso to Article 31A refers to "laws made by the Legislature of a State" and ex vi termini this cannot refer to laws made by Legislatures of 'Provinces' as the term was known in pre-Constitution period. The 'States' have been created by the Constitution and the proviso does not refer to pre-Constitution laws and, therefore, the Proviso cannot refer to the parent Act, East Punjab Act 50 of 1948, in which Section 36 occurred in its unamended form. 35. Article 316 is not dependent upon Article 31A and cannot be treated as illustrative of the rule laid down in Article 31A. Article 316 validates with retrospective effect Acts enumerated in the Ninth Schedule and Punjab Act 50 of 1948 is not one of them. The objectionable portions in Section 36 which are said to be violative of the fundamental rights have been existin....
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....96 the Orissa Estate Abolition Act, 1951 (1 of 1952), was introduced as a Bill in the Orissa Legislative Assembly on 17th January, 1950 and was passed by the Assembly on 28th September, 1951. The Governor of Orissa reserved it for the consideration of the President who gave his assent on 23rd January, 1952. Since then the Act underwent several amendments and the one with which the High Court was concerned was the amendment made on 24th December, 1954, by which the definition of the expression "estate" was enlarged. Article 31A was inserted in the Constitution oil 18th June, 1951. The question was that the President's assent to the Act having already been given under Article 201 all the consequences as described in Article 31, Clauses (3) and (4), and in the proviso to Article 31A, would necessarily follow. In this connection the following observations were made by Narasimham C. J. - "Hence as a matter of construction it must be held that the words 'law providing for acquisition' occurring in Article 31A(1) would include not only the parent Act providing for acquisition but also the amending Act which should be deemed to have been incorporated in the par....
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.... though the assent of the President had not been obtained." The above, case of Smt. Lila Vati Bai, (S) AIR 1957 SC 521 was cited in order to show that an amending Act which is explanatory of the provisions of the main Act does not become bad for want of President's assent. In the instant case, however, President's assent had been received in the case of a number of Acts. When an amending Act goes to the President for his assent, the President, while assenting to it. is presumed to consider the provisions of law both before and after the amendment. If, on consideration, the President were of the view that Section 36 transgressed the fundamental rights under the Constitution, he could have withheld his assent. Apart from the fact that the amending Act 20 of 1953, which introduced certain changes in Section 36 of an inconsequential kind, those changes were in the nature of imposition of some limitation or fetters in the matter of variation or revocation of the scheme. I am therefore of the view that both the original Act and the subsequent Acts, which from time to time, incorporated amendments in it, are not vulnerable for the reason that certain provisions were inconsis....
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.... is notice, adequate opportunity to be heard, consideration and solemn judgment. It was pithily put by Sir Edward Coke (i) vocate, (ii) interrogate, and (iii) judicat, that is to say, call, question and adjudicate. The principle is of very ancient lineage and was known to the early Greeks and the Romans besides being enshrined in the scriptures, (vide Judicial Review of Administrative Action by De Smith p. 102). Seneca, the statesman, philosopher and writer, who died in A. D. 65, in his tragedy Medea 11 199 expressed the rule in the following words - Qui statuit, aliqua parte inaudita altera, aequum licet statuerit, haud aequus fuit, -- (He who comes to a conclusion, when the other side is unheard, may have been just in his conclusion. but yet has not been just in his conduct". These lines have been cited with approval in several reported decisions by early English Judges, vide inter alia, Boswell's case (1605) 6 Co. Eep. 48 b at 52a : 77 E. R. 326 (331); Bagg's case, (1615) 11 Co. Rep. 93 b at 99 a : 77 E. R. 1271 (1280); R. v. Archbishop of Canterbury, (1859) 1 E and E 545 (559) : 130 ER 1014 (1019); Wood v. Woad, (1874) 9 Ex 190 (196, 197); and Smith v. R., (1878....
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....e immutable) and they are leges legum (law of the laws)." Similar views were expressed by Holt C. J., in City of London v. Wood (1701) 12 Mood. Rep. 669 (687). In 1723, Fortescue, J., in R. v. Chancellor of Cambridge, (1723) I Strange 557 : 93 ER 698 (704), commonly known as Dr. Bentely's case, said - "The laws of God and man both give the party an opportunity to make his defence, if be has any. I remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence upon Adam, before he was called upon to make his defence. Adam (says God) where art thou? Hast thou not eaten of the tree, whereof I commanded thee that thou shouldst not eat? And the same question was put to Eve also." To the later generations, the above view is bound to appear as fanciful, but even then it is indicative of the sanctity attached to the principle of audi alteram partem, and this is an illustration of a divine invocation in support of the principle. The last attempt to uphold the supremacy of natural law over Acts of the Legislature was made in 1824 by Best, J., in Forbes v. Cochrane, (1824) 2 B and C 448 : 107 ER 450. The subje....
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.... be so worded as expressly to authorise a procedure inconsistent with the principles of justice recognised by the common law of England, Parliament is omnipotent." Again, when that case was heard in appeal before the House of Lords, Lord Moulten said - "Their authority was purely statutory, and if the statute had authorised them to do these acts without giving any appeal, the legislation might be considered to be unwisely drastic, but it would have to be recognised and enforced by the Courts, and no such question as to whether or not it was 'contrary to natural justice' could possibly be considered by the Courts." (Local Govt. Board v. Arlidge, 1915 AC 120 (150) ). 40. The rules of natural justice require that a person or a body exercising judicial or quasi-judicial functions must act in good faith, listen fairly to both sides, give fair opportunity to the parties litigating to present their case. Earl of Selborne in Spackman v. Plushtead Board of Works, (1885) 10 AC 229, used the phrases "the substantial requirements of justice" and at another place "the essence of justice" to mean natural justice, when he observed - "No doubt,....
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....) Ltd., 1941-1 KB 53, Errington v. Minister of Health, 1935-1 KB 249 Frost v. Minister of Health, 1935-1 KB 286, Urban Housing Co. v. Oxford City Council, 1940 Ch. 70 (85). 42. In most of such cases, the problem was really one of interpretation of the statute as it was not the practice of legislative draftsmen either to place or delimit obligations to follow the rules of natural justice "since to do so would be in truth a most difficult drafting task in view of the elasticity of the rules and the variety of circumstances in which they may be relevant, the work of construction must often be largely creative. A decision as to whether or not the rules apply may depend on ascertainment of the solution that would best accord with the purposes of the legislation as a whole", (vide Administrative Law-Natural Justice-Eight of a Hearing, 1954 Cambridge Law Journal p. 16). Lord Parmoor, while delivering the judgment of the Privy Council remarked - "The particular form of inquiry must depend on the conditions under which the discretion is exercised in any particular case, and no general rule applicable to all conditions can. be formulated." (vide De Verteuil v. Knaggs, ....
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....al justice for the Minister to dismiss the appeal without disclosing the contents of the inspector's report to the appellant and without giving him a chance of being heard. The appeal was allowed. The House of Lords reversed the decision of the Court of Appeal holding that the plaintiff had no right to object to the Minister's order on this ground. Lord Haldane, L. C., observed, during the course of his speech, that when the duty of deciding an appeal was imposed "those whose duty it is to decide must act judicially. They must deal with the question referred to them without bias and they must give to each of the parties the opportunity of adequately meeting the case made against them. The decision must be given in the spirit and with the sense of responsibility of a tribunal whose duty it is to meet out justice." Lord Haldane, however, expressed the view that the procedure of other tribunals need not follow the same lines and may vary according to the nature of the tribunal and it may follow its own particular methods of procedure and without following the methods adopted by: the Courts. The Government department could carry out its judicial function in free an....
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....natural justice are unquestionably valuable, both subjectively and objectively. If they are violated, injustice may be done and the parties may have a psychological sense of grievance. But even if they are observed with the utmost zeal, injustice may still be done. In short, natural justice is not merely enough. The rules it indicates do little to ensure satisfactory decisions in the complex world of public administration in which we live." (Justice and. Administrative Law, p. 409). He counselled some form of appeal from the decisions of administrative tribunals at least in more important cases. 47. At this stage I may also refer to The Donnoughmore Report. (Cmd. 4060) issued in 1932 by the Committee on Ministers' Powers appointed by Lord Sankey, L. C., in 1929 to consider the powers exercised by or under the direction of (or by persons or bodies appointed specially by) Ministers of the Crown by way of (a) delegated legislation and (b) judicial or quasi-judicial decisions, and to report what safeguards were desirable or necessary to secure the constitutional principles of the sovereignty of Parliament and the supremacy of law. The Committee consisted of seventeen eminent....
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....authors of the Report is "not exactly". A quasi-judicial decision is one which has some of the attributes of a judicial decision but not all. According to the Report "a true judicial decision presupposes an existing dispute between two or more parties and then involves four requisites : "(i) The presentation (not necessarily orally) of their case by the parties to the dispute, (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal argument by the parties; and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law. A quasi-judicial decision equally presupposes an existing dispute between two or more parties and involves (i) and (2), but does not necessarily involve (3), and never involves (4). The place of (4) is in fact taken by administrat....
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....introducing a uniform procedure in quasi-judicial matters, when a controversy before an administrative tribunal awaits disposal, giving effect to the requirements of natural justice while maintaining in fact the basic needs of executive despatch. The principles of natural justice to which great sanctity was attached in early decisions of English Courts have been eroded in relation in administrative tribunals by many statutes. This tendency has now been checked by the welcome provisions of the Tribunals and Enquiries Act, 1958. Till such time that an analogous Act is forged on the legislative anvil in India, a detailed reference to the provisions of the English statute will be otiose. 49a. Before dealing with the principles of natural justice as adopted in India, a reference to their reception in other jurisdictions, where justice is administered under somewhat similar conditions, will be of some advantage. 50. In 1953-2 Canadian LR (SCR) 140, the appellant-association called a strike of its members who were teachers in violation of the Public Services Employees Disputes Act, which forbids such action from the employees of a school corporation. The respondent-Board, thereupon with....
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....57) One among several reasons on which the action was maintained before the trial Court was - "II est contraire aux principles fondamentaux de la justice qu'une decision judiciaire ou quasi-judiciaire soit endue, sans audition des parties --(P- 159) (It is contrary to the fundamental principles of justice that a judicial or quasi-judicial decision could be given without hearing the parties.") Rand, J., observed - "The second objection is that before revoking the certificate for cause, the Board must hear the party to be affected by that action. Audi alteram partem is a pervading principle of our law, and is peculiarly applicable to the interpretation of statutes which delegate judicial action in any form to inferior tribunals : in making decisions of a judicial nature they must hear both sides, and there is nothing in the statute here qualifying the application of that principle. "The only answer suggested to this is that the Board, being an 'administrative body', can, in effect, act as it pleases. But in this we are too much the prisoners of words. In one sense of administration, in the enactment of subordinate legislation or qua....
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....xercise of a statutory power adversely affects certain valuable rights, e.g. property rights, the requirement of notice and hearing, where the statute was silent, was deemed implied (vide Wong Yang Sung v. McGrath, (1949) 339 US 33). 53. Courts in India have been acting as vigilant sentinels on the qui vive to see that the principles of natural justice, as discussed above, are not violated by a judicial or quasi-judicial authority. In the case of the latter, the requirements of natural justice vary according to the provisions and intendment of the particular provisions. One of the broad principles of natural justice is that a quasi-judicial authority cannot make any decision against a party without giving him an effective opportunity of meeting the allegation made against him. This requires that a person whose civil right is affected must have a reasonable notice of the case he is to meet and, further, to have a reasonable opportunity of being heard in his defence. Of course, opportunity of being heard does not necessarily mean an oral hearing in per-son or by a lawyer. There, however, are exceptional cases where a public interest may be of such an imperative nature either by re....
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....tes arising out of a claim made by one party under the statute which claim is opposed by another party and to determine the respective rights of the contesting parties who are opposed to each other, there is a lis and prima facie and in the absence of anything in the statute to the contrary it is the duty of the authority to act judicially and the 'decision of the authority is a quasi-judicial act; and (ii) that if a statutory authority has power to do any act which will prejudicially affect the subject, then although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially. In other words, while the presence of two parties besides the deciding authority will prima facie and in the absence of any other factor impose upon the authority the duty to act judicially, the absence of two such parties is not decisive in taking the act of the authority out of the category of quasi-judicial act if the authority is nevertheless required by the statute to act ....
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.... vexed question as to whether an act performed by the State Government was quasi-judicial or administrative in character. S. K. Dass J., while agreeing generally with the conclusions reached by the learned Chief Justice and the reasons on which those conclusions were founded, was of the view that in that case, in arriving at its decision, the statutory body had only to consider policy and expediency and at no stage had before it any form of lis. The function under Section 53-A of the C. P. and Berar Municipalities Act was purely administrative and, therefore, such an action was not amenable to a writ of certiorari, The learned Judge, however, expressed the view that at the enquiry no real opportunity of meeting the charges had been given. Kapur J., was of the view that order under Section 53-A was in the nature of an emergency action and had a limited duration. He thought that there was no duty, in the circumstances, cast on the State Government to act judicially. The matter involved expediency and policy on which the State Government was the sole judge assuming that it was acting in good faith. According to the language of the section, the objective approach or judicial or quasi-....
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....n be obviated by the conduct of a litigant. The applicability of the operation of the maxim cannot be brushed aside on the ground that monetary value of the interest at stake is too trivial to justify an implication that opportunity to be heard need not be afforded. All those circumstances and situations, which may justify the avoidance of the audi alteram partem rule, here, are absent. In the case of proceedings taken under the Act, the principle underlying audi alteram partem rule, apart from its ancient lineage and impressive ancestry, has acquired a special sanctity, and has been uniformly considered to be of a pivotal character for dispensation of justice. 57. Nothing contained in the provisions of Section 36, read singly or along with the cognate provisions, can lend support to a construction in favour of the exclusion of the rule of natural justice by necessary implication. The legislative draftsmen never expressly insert in the provisions of an Act that rules of natural justice, pertaining to notice or opportunity to be heard, are to specifically apply -- for they always apply, except where clearly excluded. It will be a dangerous proposition, destructive of the most cheri....
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....mplates swift action and a judicial hearing may easily frustrate the very purpose contemplated by Section 53-A, for a judicial act will be subject to the powers of superintendence of the superior Courts and the operation of the order under Section 53-A may be postponed, as it has been done in this very case by taking the matter from Court to Court until it is set at rest by this Court." (p. 118) Other considerations relevant to the facts of that case which are not analogous to the facts of this case were taken into consideration for determining whether the provisions of Section 53-A of that Act contemplated purely administrative determination. Kapur, J., (paragraph 44) was impressed by the fact that Section 57 of the statute requires that the explanation of the Committee be called for before a particular action is taken by the State Government and in others no such requirement is prescribed. That was construed as a clear indication of the intention of the Legislature that an opportunity was to be given in one case and not in the other or that a quasi-judicial approach was intended in one case and administrative in the other. From these observations, it is a long way to deduce ....
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....r may be gathered from the cumulative effect of the (nature and the rights affected, the manner of the Disposal provided, the objective criterion to be adopted, the phraseology and other indicia afforded by the statute." Despite the fact that there was no provision for a hearing by the Board of Revenue, when it was dealing with a matter under Section 56(2) of the Stamp 'Act, it was held that a duty was imposed upon the authority to act judicially. 61. The principles mentioned in the last two decisions of the Supreme Court when applied to the provisions of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, provide sufficient indicia for treating the question of variation or revocation of a confirmed scheme as a determination of" a judicial nature, inter alia, for the reason that interference with that scheme would result in far reaching con-sequences of a serious character for the right-holders resulting in insecurity and expense. 62. The maxim expressio unius (personae vel rei), est exclusio alterious -- the express mention of a (person or thing) is the exclusion of another--, is not a rule of universal application and has to be app....
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....exclusio is often the result of inadvertence or accident, and the maxim ought not to be applied, when its application, having regard to the subject-matter to which it is to be applied, leads to inconsistency or injustice. I think a rigid observance of the maxim in this case would make other provisions of the statute inconsistent and absurd, and result in injustice. I cannot, therefore, permit it to govern my decision." Again in Lowe v. Dorling and Son, (1906) 2 KB 772 (785), Farwell L.J., citing the above observations with approval, said: 'It is not enough that the express and the tacit are merely incongruous; it must be clear that they cannot reasonably be intended to co-exist." 64. In the particular circumstances of this case, the maxim audi alteram partem has to be enforced, as, the Legislature has neither expressly nor by necessary implication, enacted that the rule should not apply; and, further, there are no exceptional circumstances which can. justify not giving effect to this principle. Under Section 36 of the Act, the effect of the exercise of the power upon the rights of individuals may involve serious consequences to them in respect of the areas over ....
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....e result is that the proceedings taken under Section36 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act (50 of 1948) are quashed as also any proceedings taken in pursuance of the orders of the Director, Consolidation of Holdings, dated 23rd February, 1960. I would, therefore, allow all these four appeals with costs. Dua, J. 67. I have had the privilege of going through the exhaustive judgment of my learned brother Tek Chand, J. in which every point canvassed at the bar has been discussed at length with his usual thoroughness. 68. The functions to be performed by the officers concerned with the consolidation of holdings under Section 36 of the Act appear to be quasi-judicial, for, the ratio of the Supreme Court decisions in AIR 1962 SC 1217 clearly lends support to this view. 69. So far as the expression "at any time" used in Section 36 is concerned, though of the widest amplitude, these words clearly seem to me, in their context, to call for some limitation in them, in point of time. It is true that the Act in question is by no means an example of ideal or perfect draftsmanship and one has to strain hard to discern the precise legislativ....
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.... they invariably get colour and content from their context, and the fundamental principles of our jurisprudence. Of the two rival contentions canvassed at the bar, therefore, I would, as at present advised, prefer, on the whole, to adopt the one approved by my learned brother Tek Chand J., though I must confess that I am doing so, not without a certain degree of hesitation. With these observations, I would agree with this conclusions and broadly with his reasoning. H.R. Khanna, J. 70. I have gone through the judgment proposed to be pronounced by my learned brother Tek Chand, J. and the concurrent note of learned brother Dua J. I agree that the word "may" in Section 36 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, hereinafter to be referred to as the Act, does not indicate that an option is given to the Settlement Officer whether or not to prepare the subsequent scheme in accordance with the Act, and that Section 36 cannot be struck down because of the use of the word "may". I also agree that the constitutionality and legality of Section 36 cannot be questioned in view of the provisions of ArticleI 31A of the Constitutio....
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....me is brought into force or a change is ordered in pursuance of provisions of subsections (2), (3) and (4) of Section 21 or an order passed under Section 36 or 42 of this Act." 72. The above provision of law goes to show that possession of holding delivered under the scheme can be disturbed in pursuance of an order passed kinder Section 36 of the Act. According to a Division Bench case, 1962 (64) Pun LR 668, upon which reliance has been placed by the appellants, possession can be delivered only after the new record of rights is prepared. Section 22 of the Act shows that the new record of rights is prepared giving effect to the repartition as finally sanctioned under Section 21 of the Act. Sub-section (1) of Section 24, therefore, clearly indicates that an order under Section 36 can be passed after the record of rights has been prepared and possession delivered. In order to ensure harmonious construction of Section 36 and Sub-section (1) of Section 24, it cannot, in my view, be held that variation or revocation of a scheme can only be made before repartition and the preparation of new record of rights. To hold otherwise and to place a limited interpretation sought to be place....
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....olidation of holdings to some extent always involves an uncertainty of title. If despite that the Legislature has made provisions for consolidation for the ultimate good, there is no reason why it cannot also provide that a scheme of consolidation, which has been subsequently found to be defective, should not be substituted by a better scheme. Consolidation was described as a boon to the tenure holders of a village by their Lordships of the Supreme Court in Attar Singh v. State of U.P., AIR 1959 SC 564 wherein an attempt was made to assail the constitutionality of U. P. Consolidation of Holdings Act. The Act was held not to offend Articles 14 and 31(2) of the Constitution. In a Pull Bench case of this Court, Jagat Singh v. State of Punjab, 1962 (64) Pun LR 241 : (AIR 1962 Punj 221) (FB) wherein the vires of the East Punjab Holdings (Consolidation and Prevention of 'Fragmentation) Act, 1948, were questioned, the Act was held to be not ultra vires of the Constitution and was described to be a measure designed, to promote agrarian reform. If consolidation of holdings is a beneficial measure for the good of the tenure holders and no objection can be taken to it, it is riot clear, ....
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.... should be excluded or embraced. However unjust, arbitrary or inconvenient the meaning conveyed may be, it must receive its full effect When once the meaning is plain, it is not the province of a Court to scan its wisdom or its policy. Its duty is not to make the law reasonable, but to expound it as it stands, according to the real sense of the words." On page 64 of the book, Craies on Statute Law, 5th edition, it is observed as under: "The cardinal rule for the construction of Acts of Parliament is that they should be construed according to the intention of the Parliament which passed them. The tribunal that has to construe an Act of a Legislature, or, indeed any other document, has to determine the intention as expressed by the words used. And in order to understand these words it is natural to inquire what is the subject-matter with respect to which they are used and the object in view'. If the words of the statute are themselves precise and unambiguous, then no more can be necessary than to expound those words in their ordinary and natural sense. The Words themselves alone do in such a case best declare the intention of the lawgiver. "Where the language ....